Among these abnormal human beings, two groups must be particularly distinguished. Limiting our observations to those who are true aggressively antisocial abnormals, that is to say, who are not adapted to a certain social order and attack it by crimes, we must distinguish those who for egoistic or ferocious reasons attack society by atavistic forms of the struggle for existence by committing socalled common crimes in the shape of fraud or violence, thereby opposing or abolishing conditions in which their fellow beings may live. This is the atavistic type of criminals which represents an involutionary, or retrogressive, form of abnormality, due to an arrested development or an atavistic reversion to a savage and primitive type. These constitute the majority in the world of criminals and must be distinguished from the minority, who are evolutionary, or progressive, abnormals, that may also commit crime in a violent form, but must not be confounded with the others, because they do not act from egoistic motives, but rebel from altruistic motives against the injustice of the present order. These altruistic criminals feel the sufferings and horrors due to the injustice surrounding them and may go so far as to commit murder, which must always be condemned, but which must not be confounded with atavistic or egoistic murder. Recourse to personal violence is always objectionable from the point of view of higher manhood, which desires that human life should always be held in respect. But the reasons for such a crime are different, being egoistic in the one, and altruistic in the other case. The evolutionary abnormal is often an instrument of human progress, not in the form of criminality, but in that of intellectual and moral rebellion against conditions which are sanctioned by laws that frequently punish such an evolutionary rebellion harder than atavistic crime, as they do in Russia, where capital punishment has been abolished for common crimes, but retained for political violations of the law! We are living in an epoch of transition from the old to the new, and contemporaneous humanity has an uneasy moral conscience in this critical time. The ruling classes are losing their clearness of vision, so that they promise monuments to those political murderers who promoted their own historical victories, but would condemn like any common criminal him who now devotes his soul to a revolutionary ideal, would throw into prison the pioneer of new human ideals, just as Russia is excommunicating the rebel Tolstoi. I mention Leo Tolstoi advisedly for the purpose of giving a precise illustration of my heterodox thought in reference to this question. We are opposed to any form of personal violence (with the sole exception of self-defense), we cannot approve of any form of personal assault, no matter what may be its motive. Therefore we cannot have words of praise or excuse for political murder, though it may be inspired by altruistic motives. We can demand that the legislator should distinguish between the psychological sources of these two forms of murder, the egoistic and the altruistic form. But we condemn them both, because they are inhuman forms of violence. Ideas do not make victorious headway by force of arms. Ideas must be combatted by ideas, and it is only by the propaganda of the idea that we can prepare humanity for its future. Violence is always a means of preventing the sincere and fruitful diffusion of an idea. We do not say this merely for the abnormals of the lower classes. We refer with scientific serenity also to the upper classes, who would suppress by violence every manifestation of revolt against the social iniquities, every affirmation of faith in a better future.
This is the conception of our science, which thus succeeds in distinguishing traits of character even among the unlucky and forlorn people of the criminal world, while the classic school of criminology regards a criminal as a sort of abstract and normal man, with the exception of cases of minors, deaf mutes, inebriates, and maniacs.
In fact, the classic school of criminology regards all thieves as THE thief, all murderers as THE murderer, and the human shape disappears in the mind of the legislator, while it re-appears before the judge. Before the essayist and legislator, the criminal is a sort of moving dummy, on whose hack the judge may paste an article of the penal code. If you leave out of consideration the established cases of exceptional and rare human psychology mentioned in the penal code, all other cases serve the judge merely as an excuse to select from the criminal code the number of that article which will fit the criminal dummy, and if he should paste 404 instead of 407 on its back, the court of appeals would resist, any change of numbers. And if this dummy came to life and said: "The question of my number may be very important for you, but if you would study all the conditions that compelled me to take other people's things, you would realize that this importance is very diagrammatic," the judge would answer: "That's all right for the justice of the future, but it isn't now. You are number 404 of the criminal code, and after leaving this court room with this number pasted legally on your back, you will receive another number, for you will enter prison as number 404 and will exchange it for entry number 1525, or some other, because your personality as a man disappears entirely before the enactment of social justice!" And then it is pretended that this man, whose personality is thus absurdly ignored, should leave prison cured of all degeneration, and if he falls back into the path of thorns of his misery and commits another crime, the judge simply pastes another article over the other, by adding number 80 or 81, which refer to cases of relapse, to number
404!
In this way the classic school of criminology came to its unit of punishment, which it heralded as its great progress. In the Middle Ages, the diversity of punishment was greater. But in the 19th century the classic school of criminology combatted dishonoring punishment, corporeal punishment, confiscation, professional punishment, capital punishment, with its ideal of one sole penalty, the only panacea for crime and criminals, prison.
We have, indeed, prohibitory measures and fines even today. But in substance the whole punitive armory is reduced to imprisonment, since fines are likewise convertible into so many days or months of imprisonment. Solitary confinement is the ideal of the classic school of criminology. But experience proves that this penalty has as much effect on the disease of criminality, as the remedy of a physician would have, who would sit in the door of a hospital and tell every patient seeking relief: "Whatever may be your disease, I have only one medicine and that is a decoction of rhubarb. You have heart trouble? Well, then, the problem for me is simply—how big a dose of rhubarb decoction shall I give you?"
And measuring doses of penalty is the foundation of the criminal code. That is so true that this code is in its last analysis but a table of criminal logarithms for figuring out penalties. Woe to the judge who makes a mistake in sentencing a 19 year old offender who was drunk when he sinned, but had premeditated his deed. Woe to the judge, if he misses his calculation in adding or subtracting the third, or sixth, or one half, corresponding to the prescribed extenuating or aggravating circumstances! If he makes a miscalculation, the court of appeals is invoked by the defendant, and the inexorable court of appeals tells the judge: "Figure this over again. You have been unjust." The only question for the judge is this: Add your sums and subtract your deductions, and the prisoner is sentenced to one year, seven months, and thirteen days. Not one day more or less! But the human spectator asks: "If the criminal should happen to be reformed before the expiration of his term, should he be retained in prison?" The judge replies: "I don't care, he stays in one year, seven months, and thirteen days!"
Then the human spectator says: "But suppose the criminal should not yet be fit for human society at the expiration of his term?" The judge replies: "At the expiration of his term he leaves prison, for when he has absolved his last day, he has paid his debt!"
This is the same case as that of the imaginary physician who says: "You have heart trouble? Then take a quart of rhubarb decoction and stay twelve days in the hospital." Another patient says: "I have broken my leg." And the doctor: "All right, take a pint of rhubarb decoction and 17 days in the hospital." A third has inflammation of the lungs, and the doctor prescribes three quarts of rhubarb decoction and three months in the hospital. "But if my inflammation is cured before that time?" "No matter," says the doctor, "you stay in three months." "But if I am not cured of my lung trouble after three months?" "No matter," says the doctor, "you leave after three months."
To such results have wise men been led by a system of penal justice, which is a denial of all elementary common sense. They have forgotten the personality of the criminal and occupied themselves exclusively with crime as an abstract juristic phenomenon. In the same manner, the old style medicine occupied itself with disease as such, as an abstract pathological phenomenon, without taking into account the personality of the patient. The ancient physicians did not consider whether a patient was well or ill nourished, young or old, strong or weak, nervous or fullblooded. They cured fever as fever, pleurisy as pleurisy. Modern medicine, on the other hand, declares that disease must be studied in the living person of the patient. And the same disease may require different treatment, if the condition of the patient is different.